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LINDA BERGER v. U. G. I. CORPORATION (01/16/81)

filed: January 16, 1981.

LINDA BERGER, ADMINISTRATRIX OF THE ESTATE OF WILLIAM H. BERGER, DECEASED
v.
U. G. I. CORPORATION, AND THE CITY OF ALLENTOWN. APPEAL OF U. G. I. CORPORATION



No. 2012 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Lehigh County, Civil Division -- Law, at No. 617 June Term, 1977.

COUNSEL

Richard F. Stevens, Allentown, for U.G.I. Corp., appellant.

Malcolm J. Gross, Allentown, submitted a brief for Berger, appellee.

John Thomas, Allentown, for The City of Allentown, appellee.

Brosky, Hoffman and Cirillo,*fn* JJ.

Author: Hoffman

[ 285 Pa. Super. Page 375]

Appellant contends that the lower court erred in concluding that appellee could not be joined as an additional defendant. We disagree and, accordingly, affirm the order of the lower court.

On August 8, 1976, William Berger, a fireman employed by appellee, the City of Allentown, was killed by a gas explosion while fighting a fire in Allentown. Berger's wife and administratrix, Linda Berger, brought wrongful death and survival actions against appellant, U.G.I. Corporation, alleging, inter alia, that it had negligently maintained its gas lines and failed to warn the decedent of the danger of explosion. Appellant subsequently joined appellee as an additional defendant, alleging that appellee's water and

[ 285 Pa. Super. Page 376]

    sewer department had negligently installed a water main too close to appellant's gas line causing the gas leakage and the fatal explosion. Appellee's answer and subsequent motion for judgment on the pleadings asserted that it could not be joined as an additional defendant pursuant to section 303(b) of the Pennsylvania Workmen's Compensation Act*fn1 because William Berger was killed in the course of his employment. The lower court granted appellee's motion and denied exceptions. This appeal followed.

Appellant contends that appellee is not immune from suit by a third party under the Act because the injured employee worked in a department which was separate and distinct from the allegedly negligent department. We disagree.

Section 303(b) creates an exception to the general right to contribution from joint tort feasors. Under that section, a third party whose negligence is responsible, in part, for an injury suffered by an employee protected by the [Pennsylvania] Workmen's Compensation Act, may not, in the suit brought by the employee against him, join the employer as an additional defendant. Nor may the third party otherwise seek contribution or ...


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